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Jackson LJ calls on MPs not to scrap legal aid for medical negligence

5 September 2011

Lord Justice Jackson has called on MPs not to scrap legal aid, particularly for medical negligence cases. His intervention this afternoon comes the day before a Commons committee considers amendments to the legal aid bill.

The lord justice said the solution in the bill, where recoverability of ATE premiums in conditional fee cases is retained for medical negligence cases only, was “the most expensive and inefficient mechanism which it is possible to devise in order to achieve the policy objective”.

In a speech to the Cambridge Law Faculty, Jackson LJ said: “The extent of public funding which can be devoted to legal aid is of course a matter for parliament, not for the judiciary, to decide.

“Nevertheless, in order to dispel the confusion which has arisen, let me make it plain that the cutbacks in legal aid are contrary to the recommendations in my report.”

Jackson said he made no recommendation in his final report for the expansion or restoration of legal aid.

“I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas.

“Since, in respect of a vast swathe of litigation, the costs of both sides are ultimately borne by the public, the maintenance of legal aid at no less than the present levels makes sound economic sense and is in the public interest.”

Jackson LJ said the machinery already existed in the legal aid scheme to assess the means of medical negligence claimants and apply a cost/benefit test.

He said the LSC had staff experienced in performing this task and authorising the instruction and remuneration of experts. If the bill went through as it is, he predicted, “all that expertise and experience will be lost”.

Lord Justice Jackson did not confine his criticism to the legal aid bill and strongly attacked the Law Society’s campaign against his proposals.

“It is right and proper that the Law Society should be campaigning to retain the present scope of legal aid,” he said.

“This case clearly rests on public interest grounds, even if the campaign ultimately fails because other public interests are deemed to be greater.

“However, the campaign against the Jackson proposals is not based upon the public interest at all.”

Jackson LJ said this campaign was “inimical to the public interest” although it was “very much in the interests of those groups who are making disproportionate profits out of the current arrangements.

“Indeed, to their credit, many lawyers publicly (and even more lawyers privately) recognise that the present rules re CFAs and ATE insurance are deeply flawed and require reform along the lines I propose.”

Lord Justice Jackson said the society’s campaign suggested that the legal aid cuts and his proposals were part of a “composite package”, which they were not.

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